SUGGESTIVE IDENTIFICATION IS NOT ADMISSIBLE WHEN WITNESS PROVIDES PHOTOGRAPH THAT IS USED IN PHOTOGRAPHIC ARRAY.

In Commonwealth v. Johnson, the Supreme Judicial Court applies “common law principles of fair-ness set forth in Commonwealth v. Jones. In Johnson, “Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open. He returned to his home and encountered a stranger, who was armed with a firearm, inside his apartment. They struggled, and during the struggle the firearm went off, striking no one.” Talabi “described the assailant as a light-skinned black male wearing a gray hooded sweatshirt.” The police asked Talabi to go to the Brockton Police station to view booking photographs, but he did not.

Five days later, Talabi called the Brockton police and told them “he now knew the identity of the intruder.” He reported that his cousin’s home had been broken into one day before the incident and the break in “had been captured in a video recording by a neighbor’s surveillance system that showed the person who had broken into his home.” By the ‘size and shape’ of the person in the surveillance footage, Hendricks believed that the intruder ‘could possibly be’ the defendant, who was the boyfriend of a cousin of both Hendricks and the vic-tim.” Hendricks showed Talabi a photograph of the “defendant and his girlfriend taken by Hendrick’s mother at a cookout.” Talabi “viewed the photograph and identified the defendant as the intruder he had dis-covered in his home.”

The police assembled an eight-person photographic array that included the photograph that Talabi gave to the police, and Talabi “positively identified the defendant’s photograph in the array as the man he discovered in his apartment.”


The lower Court “’found that the police did not violate the defendant’s constitutional rights in administering the photographic array but allowed the motion to suppress the two out-of-court identifications under the common-law principles of fairness recognized in Commonwealth v. Jones, concluding that they were ‘impermissibly tainted by the suggestive circumstances.’” The Court “also allowed the motion to suppress any in-court identification, concluding that the Commonwealth had failed to meet its burden of showing by clear and convincing evidence that an in-court identification would be based upon an independent source.”


On appeal, after discussing the per se exclusion of identifications due to police misconduct under article 12 of the Massachusetts Declaration of Rights, the Court notes that “[a] suppression ruling under Jones differs in two fundamental ways from the suppression ruling that a judge makes under art. 12 where the police are alleged to have obtained an eyewitness identification through an unnecessarily suggestive identification procedure.” Under Jones, “the standard of admissibility is different; admissibility is determined not by a rule of per se exclusion, because there is no police misconduct to deter through suppression, but by weighing the probative value of the identification against the danger of unfair prejudice, and determining whether the latter substantially outweighs the former.”


The Court notes that “[i]n determining the strength of an identification’s independent source we consider such factors as the quality of the witness’s opportunity to observe the offender at the time of the crime, the amount of time between the crime and the identification, whether the witness’s earlier description of the perpetrator matches the defendant, and whether the witness earlier identified another person as the perpetrator or failed to identify the defendant as the perpetrator. It also considers “the witness’s prior familiarity with the person identified, where that person is a witness’s family member, friend, or long-time acquaintance. ‘After weighing the risk of unfair preju-dice arising from the suggestiveness of the identification against the strength of its independent source, the judge must determine whether the identification is so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence. If it is, the judge must rule it inadmissible.”


The Court concludes that the “judge reasonably found that Hendricks suggested to the victim that the man who invaded the victim’s home on September 21, 2012, might have been the same man he suspected broke into his own home the previous day—a man who was connected to both of them because he was the boyfriend of their cousin. The judge reasonably could have found a substantial risk that these suggestive circumstances influenced the victim when he examined the cookout photograph of the defendant and identified the defendant as the intruder from that photograph and from the subsequent photographic array. The judge also reasonably could have found a substantial risk that this suggestion affected the witness’s level of certainty in the identification and his recollection of his observations of the intruder during the incident.” The Court affirms the allowance of the defendant’s motion to suppress the out-of-court and in-court identifications of the defendant by the victim.

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